1.Reflecting on forty years of law and development reforms, Trubek and Santos (2006, p. 86) said that ‘Law and Development veterans could only sigh as they saw many of the errors of the past being repeated. For them, the emphasis on top-down, one size fits all reform, suggested that little had been learned from prior experiences.’
2.Over the last thirty years Islamic courts are gaining influence in some countries in Southeast Asia. Select one country in this region and explain how Islamic courts are spreading their influence. Do the Islamic courts apply to everyone in the selected country? If not, how are conflicts between the government and Islamic courts resolved? Provide case studies to illustrate your answer.
1.Since time immemorial, there was a need of law and development programs. However, there has been a long debated topic regarding the fact that the world really needs developmental programs on law and development. In this regard, it is noteworthy to mention that several mistakes were made by the programs of law and development. Modern authors highlighted three different mistakes that have been made by law in the evolution of law and development paradigm (Kline & Moretti, 2014). Firstly, in order to foster developmental strategies, law took the assistance of the State. This was the first mistake made by the law and development program which gave rise to Interventionist State (De Greiff, 2013).
The second mistake was regarding the interference of law in State intervention (Van Rooij & Nicholson, 2013). It was observed that the law and development programs limited the intervention of State and uplifted the promotion of markets in order to foster development (Reimann, 2013). The third mistake was regarding the remedies provided by the law and development programs by addressing different aspects of social norms (Kline & Moretti, 2014). In this regard, the role of law is adaptable. However, the role of law in the law and development program has been considered as reflexive and responsive. The third mistake which was made by the program was regarding the response to the failure of attaining substantive development (Eskov, 2014). The second mistake, however, resulted to serious economic consequences and due to this reason, the law and development program had to completely surrender its absolute dependency on the markets (Pazey & Cole, 2013). However, the role of the market was not abolished. In order to facilitate development by focusing on issues related to social and human rights, the law and development programs focused on the concept of rule of law (Tushnet, 2017). It can be seen that despite such efforts, the new objectives failed.
The traditional law and development programs focused on the need for changes in both social and economic relations (Reimann, 2013). In this regard, the programs proposed ways in which new laws could be implemented in order to make new changes. In order to manage the economic conditions of the society, the society needs to be transformed (Eskov, 2014). The law and development program served as a negative instrument as it adhered to the traditional values and resisted new changes (Pazey & Cole, 2013). It can be observed that from the very beginning, the negative impact of the law and development programs increased. Due to this reason the developmental agencies lost faith in the intervention of state and emphasized more on the market rules and regulations.
The law and developmental programs has been increasingly affected by the global market forces (Pazey & Cole, 2013). The three main forces of law has been affected has been recognized. The first major force is concerned with the availability of global models which has been promoted by the World Bank (Augustine, 2015). The second major force is regarding the implementation of law in national level. In this regard, it is noteworthy to mention that, national lawmakers must implement the new roles that law has to offer in order to determine the competitiveness on national level. The developmental strategy of a country largely depends upon the foreign investment (Augustine, 2015). In this way the legal regulations for development shall be compared by foreign investors in different nations in order to decide the best environment for invest. The growth of transnational law has been recognized as a third global force (Van Rooij & Nicholson, 2013). It is evident that the legal order of a nation is hugely affected by the norms that have been originated outside its boundary.
It can be observed that the problems faced by the law and development programs are consistent with the regulatory capacity of the developmental wave and fifth law. In modern era, with the advent of law and development there have been major changes in the development process (Pazey & Cole, 2013). However, the program failed to cope up with the changing legal framework and focus on the central role of law. With the evolution of law and development programs, the economic development of South-east Asia was recognized by the world. The outstanding economic development of the regions of South-East Asia has been debated modern economists from different parts of the world. However, despite its vast economic growth, the legal framework of the Southeast Asia was not given much importance. The legal systems of the regions of Southeast Asia were ignored however it served as a probable source of knowledge which concerned the theoretical questions of law and development (Eskov, 2014). In this regard, it is noteworthy to mention here that, in spite of the presence of various literatures which are rich in western language on the legal systems of Southeast Asia, the region played inconsequential role in the uplifting theoretical literatures on law and development (Van Rooij & Nicholson, 2013). It can be observed that since time immemorial several attempts have been made by different scholars of Southeast Asia in order to develop debates on law and development. In spite of these ventures, they failed to address the discrepancies depicted in the law and development programs on Southeast Asia.
The case study of Asian Development Bank (ADB) can be illustrated in order to explain the importance of law and development programs. From the very beginning the concept of law and policy reforms has been considered as vial ingredients for the purpose of good governance and economic development in Asia (Reimann, 2013). In this regard, the governance strategy of ADB can be emphasized in which law and development has been considered to be necessary for the purposed of economic development. Since time immemorial, the law and development program has been an essential ingredient of the governance policy of ADB (Tushnet, 2017). However, various challenges were faced by the ADB’s law and development programs and the major among them analyzing the legal framework of a country and how it operates (Kline & Moretti, 2014). In spite of these limitations, the law and development programs have proved to be beneficial in supporting the capacity issues faced by the Asian countries.
2.In order to illustrate the influence of Islamic Courts on the Southeast Asian countries, the case study of Thailand can be explained. It is evident that from the very beginning there was a presence of Muslims minority groups in Thailand. However, they established their own kingdom in the southernmost part of Thailand and order to influence their culture on the local people (Piyada, 2014). It was observed that the local Muslim group was dominated by the awareness of the growing political outcome and therefore they focused on their cultural and religious sources in order to develop new political ideologies (Grassa, 2013). In this regard, it is noteworthy to mention here that, the Muslim community in Thailand posed as a serious threat to the government of Thailand. This is due to the reason that the Thai government attempted to modernize the religious and cultural views of the Muslim community in order to further develop the cultural and political bond between the Thai Buddhist cultures (Samra, 2016).
Since time immemorial, the Muslim communities of the regions of Southeast Asia proved to be major challenge for the government. However, in case of Thailand, the Southern Muslims posed as one of the major political issue which threatened the level of unity and security of Thailand (Yegar, 2014). In this context, it can be mentioned that the Muslim communities not only formed a religious ethnic group in Thailand however, they were a part of the national group as well. In recent years, there has been an increase in the concentration of the Muslim communities in parts of southernmost provinces and they have been successful in constituting half of the total population of the Thai-Muslim community (Ockey, 2013). Similarly, it can be observed that half of the Muslim communities are scattered in the other parts of the Thai regions. However, in spite of vast population of the Muslim communities in the Thai regions it can be observed that most of them occupy the central region and therefore it is mostly populated. Though these Islamic communities are sympathetic to the Malay people living in that region however, they see themselves as an important part of the Thai society (Ockey, 2013). These Islamic communities imagine themselves as Thai nationals (Yegar, 2014). It can be observed that with passing years, these factors gave rise to complexity. The Thai people from the very beginning were forgiving and have been considered as a tolerant state, therefore in spite of all such religious and cultural conflicts there was a scope for unity (Daneshgar, 2014).
From the very beginning the Syariah Courts formed an important part of the formal government institutions of the countries of Southeast Asia (Grassa, 2013). However, the method of dispute resolution among Islamic culture was different from those of the Southeast Asian countries. The Islamic courts very much influenced the justice system of Thailand (Daneshgar, 2014). The Syariah Courts formed as important part of the Thai Judiciary which was independent in nature (Yegar, 2014). The Syariah courts especially dealt with cases involving civil jurisdiction which were mainly related with Islamic family matters and inheritance (Piyada, 2014). However, it can be seen that the criminal jurisdiction of Syariah Court is not vested on the Thai state but is limited (Samra, 2016). In Thai state, there has developed Islamic legislations which are related to family matters, civil procedure and inheritance.
The application of Islamic law was allowed by Thailand in order to solve various disputes arising out of family and inheritance (Noh, 2014). However, such practice can be observed only in the southern border of the provinces which covers most of the portion of Muslim population. Special Islamic Judges has been appointed by Thailand which is termed as dato yutitham in that region (Joll, 2014). In this regard, the application of Islamic law in the courts of Thailand can be traced. It can be stated that in recent trends, with the modernization of various laws in Thailand there has been significant changes on the impact of the application of Islamic law in the provinces of the Southern border. In this regard, it can be mentioned that such changes took place in two different ways which can be classified into- codification and constitutionalism.
With changing period, the influence of the Islamic Courts in Thailand reduced considerably. The government ruled by Pibunsongkram encouraged the nationalism of Thai and in fact challenged the special status occupied by the Malay Muslims in the State (Grassa, 2013). In this regard, the Section 4 of the Act Promulgating the Civil and Commercial Code was repealed by the government which formed the basis of the application of Islamic law in the Thai State (Piyada, 2014). In spite of all these efforts the application of Islamic law did not remain hidden for a long time.
It can be observed that after reign of Pibunsongkram came to an end there has been significant changes in the government affairs. However, two important factors contributed in re constructing new schemes. Firstly, there have been major political changes in Thailand. The political leaders of Thailand initiated the friendly approach in order to develop good relations with the Malay Muslims (Ockey, 2013). With changing time, the Malay Muslims eventually joined the British States in order to form an independent government of their own (Noh, 2014). Anti-Japanese military operations were supported by them and they even sought to take the matter of Malay Muslims in Southern Thailand at international level (Samra, 2016). A letter was sent to the United Nations by them in order to develop activities in support of an independent Malayan State (Joll, 2014). However, in spite of all such attempts, the Malay Muslims were not successful. However, most the communities of Malay Muslims stayed back in Thailand as the government of Thailand initiated sophisticated policies and friendly approach towards the community.
References:
Augustine, N. R. (2015). Preface: Augustine’s laws and major system development programs. Defense AR Journal, 22(1), 32-62.
Daneshgar, M. (2014). The Study of Persian Shi’ism in the Malay-Indonesian world: A Review of Literature from the Nineteenth Century onwards. Journal of Shi’a Islamic Studies, 7(2), 191-229.
De Greiff, P. (2013). Transitional justice and development.
Eskov, V. M. (2014). Evolution of the emergent properties of three types of societies: The basic law of human development. Emergence: Complexity and Organization, 16(2), 107.
Grassa, R. (2013). Shariah supervisory system in Islamic financial institutions: New issues and challenges: A comparative analysis between Southeast Asia models and GCC models. Humanomics, 29(4), 333-348.
Joll, C. M. (2014). Making Sense of Thailand’s “Merit-Making” Muslims: Adoption and Adaption of the Indic in the Creation of Islamicate Southern Thailand. Islam and Christian–Muslim Relations, 25(3), 303-320.
Kline, P., & Moretti, E. (2014). People, places, and public policy: Some simple welfare economics of local economic development programs.
Noh, A. (2014). Islam, Public Policy and Public Administration in Malaysia: Negotiating Complexities. Administrative Culture, 15(2), 204-221.
Ockey, J. (2013). Thailand in 2012: Reconciling a New Normal. Asian Survey, 53(1), 126-133.
Pazey, B. L., & Cole, H. A. (2013). The role of special education training in the development of socially just leaders: Building an equity consciousness in educational leadership programs. Educational Administration Quarterly, 49(2), 243-271.
Piyada, C. (2014). Contesting Law and Order: Legal and Judicial Reform in Southern Thailand in the Late Nineteenth to Early Twentieth Century. Southeast Asian Studies, 3(3), 527-546.
Reimann, M. W. (2013). Comparative law. American journal of comparative law, 2001330470(27/07), 12.
Samra, E. (2016). Corporate governance in Islamic financial institutions.
Tushnet, M. (2017). Comparative constitutional law. In The Oxford handbook of comparative law.
Van Rooij, B., & Nicholson, P. (2013). Inflationary trends in law and development. Duke J. Comp. & Int’l L., 24, 297.
Yegar, M. (2014). Islam and Islamic institutions in British Malaya: policies and implementatio
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